Citation Nr: 1304430 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-36 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative changes. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for blurred vision. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for sleep disturbances. REPRESENTATION Appellant represented by: Robert Brown, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1971 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In June 2012, the Veteran notified the Board of his intention to withdraw his claims for service connection for lumbar spine degenerative changes, blurred vision and sleep disturbances. 2. Hearing loss is shown to be etiologically related to active service. 3. Tinnitus is shown to be etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant with respect to the issues of service connection for lumbar spine degenerative changes, blurred vision and sleep disturbances have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 3. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). At the Board hearing in June 2012, the Veteran expressed his desire to withdraw his appeal for service connection for blurred vision and sleep disturbances. In a June 2012 written statement, the Veteran's attorney indicated that the Veteran wished to withdraw his appeal for service connection for lumbar spine degenerative changes. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues and they must be dismissed. II. Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). Given the favorable disposition of the claims of service connection for hearing loss and tinnitus on appeal, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. The favorable disposition regarding the service connection claims in the decision below has resulted in a full grant of the benefits. See Bernard v. Brown, 4 Vet. App. 384 (1993). III. Analysis of Claim Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran had active duty service from July 1971 to July 1975. Service treatment records do not show any complaints or diagnoses of hearing loss or tinnitus. The report of the February 1971 enlistment examination included audiometric testing. The audiometric thresholds at frequencies of 500, 1000, 2000 and 4000 Hertz were 15, 0, 0, and 20 decibels in the left ear and 5, 0, -5, and 20 decibels in the left ear. The report of the separation examination dated in July 1975 shows a whispered voice test was 15/15 in both ears. While audiometric testing was conducted at entry into service which did not show hearing loss, audiometric testing was not conducted at separation from service, so no audiometric test scores are available to measure the degree of hearing loss at service separation. Audiometric testing is undoubtedly more precise than a whisper voice test, although the whisper voice test is an alternative means of testing hearing. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). The absence of service treatment records showing in-service audiometric evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board finds that the whispered voice test is a subjective and blunt measure of hearing loss, and is of little probative value in this case. The whispered voice test cannot measure audiometric threshold shifts, can neither establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, and is not capable of capturing hearing loss that may have begun in service following acoustic trauma. Particularly in light of the Court's holding in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements for hearing loss disability after service, the service examiners' indications that the whisper tests showed normal hearing, including at service separation, is of little probative value. The Veteran contends that hearing loss and tinnitus are related to noise exposure in service. The Veteran has reported that he was exposed to acoustic trauma from power tools that he used to strip paint and while firing a 5-inch gun on the ship. In a brief in support of his claim, the Veteran has indicated that the firing of the 5 inch gun caused his hearing to go away for periods of time and caused his ears to ring for 10 to 12 hours. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Veteran is competent to report that he experienced hearing loss a and tinnitus since service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the Veteran's testimony that he had hearing loss and tinnitus during service and since service credible. Accordingly, the Board finds that continuity of hearing loss and tinnitus symptomatology since service has been demonstrated. The record contains an opinion from a private audiologist, L.I., dated in October 2009. The opinion reflects that the Veteran presented with a history of hearing loss and tinnitus that he stated began while he was serving in the Navy from July 1971 to July 1975. The Veteran reported exposure to hazardous noise from hand guns, 5 inch guns on ships and engine noise on the ship. The examiner noted post discharge work history as a mechanic and gas pumper utilizing hearing protection as required. The audiologist diagnosed binaural hearing loss and tinnitus and opined that it is "just as likely as not" that some of the Veteran's hearing loss and tinnitus is the result of exposure to loud noise while in service. An audiogram performed by the private audiologist reflects that audiometric thresholds at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz were 15, 25, 55, 55 and 60 decibels in the right ear. The audiometric thresholds at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz were 15, 25, 60, 60 and 70 decibels in the left ear. These findings meet the criteria for hearing loss under § 3.385. The audiologist diagnosed severe high frequency sensorineural hearing loss in the left ear and a moderate to profound high frequency hearing loss in the right ear. The Veteran's testimony and his post-service medical records reflect his report of hearing loss and tinnitus since service. The continuous post-service symptomatology of hearing loss forms an alternative nexus of the current hearing loss and tinnitus to service. See 38 C.F.R. § 3.303(b) (a showing of continuity of symptoms after service is required for service connection). The same continuous post-service symptoms of hearing loss and tinnitus in this case formed the later diagnosis of bilateral hearing loss and tinnitus. See Rhodes v. Brown, 4 Vet. App. 124, 126-27 (1993) (lay witnesses testimony of post-service continuous symptoms of numbness and tingling may be sufficient to substantiate a claim of service connection for thoracic outlet syndrome); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition); Savage, 10 Vet. App. 488, 496-97 (1997) (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley, 5 Vet. App. at 159. Because the service treatment record evidence does not demonstrate either the presence or absence of hearing loss or tinnitus in service, the Board finds that other evidence that bears on the Veteran's hearing loss and tinnitus in service is highly probative in determining the onset and chronicity of hearing loss and tinnitus symptoms in service and continuity of hearing loss and tinnitus symptoms since service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection hearing loss and tinnitus have been met. In this case, it has been shown by competent and credible evidence that the Veteran had noise exposure in service and has had hearing loss and tinnitus since service. In addition, a competent medical opinion links current hearing loss and tinnitus to noise exposure in service. Accordingly, the Board concludes that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal as to service connection for blurred vision is dismissed. The appeal as to service connection for sleep disturbances is dismissed. The appeal as to service connection for lumbar spine degenerative changes is dismissed. Service connection for hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veteran contends that he began to have headaches in service and has had headaches since service. The Veteran has not been afforded a VA examination for his claimed headache disability. Given the Veteran's testimony of headaches during service and since service, the Board finds that a VA examination is warranted to ascertain the nature and etiology of headaches. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of a current headache disability. The claims file must be provided for the examiner's review. The examiner set forth the diagnosis or diagnoses for any current headache disability. The examiner should provide an opinion as to whether is at least as likely as not (50 percent or greater likelihood) that any current headache disability had its onset in service or is otherwise related to service. In providing this opinion, the examiner should consider the Veteran's reported history of his headache symptoms. The examiner should provide a detailed rationale for the opinion. 3. Following the completion of the requested actions, the claims on appeal should be readjudicated. If the claims remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs